The main legal point established in the judgment is that the provisions of Section 222(1) of the Income Tax Act must be interpreted to determine the existence of a transfer for the attachment and sale of property for tax recovery purposes.

PER F.I.R EBELLO, J. Rule.

By consent of parties heard forthwith.

2. The petitioner is aggrieved by the action of the 1st respondent in taking steps to sell of the land and house standing thereon which according to the petitioner is of his ownership and stands in his name. It is the case of the petitioner that the respondents are seeking to recover tax dues of his father for the block years 1986-96 and considering the explanation to Section 222(1) of the Income Tax Act, that action is without jurisdiction.

3. The petitioner’s case is as under:- The property was purchased on 3rd December, 1974 when the petitioner was a minor in his name by his father. A house was constructed thereon somewhere in 1979-80. The petitioner was born on 25th October, 1969. The property and the property along with the house is shown as standing in the petitioner’s name atleast since the year 1979-80. The petitioner on attaining majority effected necessary corrective entries on 25th October, 1988 in the record of Khopoli Nagar Parishad as well as the record of the Tahsildar at Khopoli.

4. There was a search and seizure operation conducted under Section 132 of the Income Tax Act, 1961 against the petitioner’s father on 28th March, 1996. During the search an amount of Rs.9,556/- and

jewellery of the value of Rs.1,08,200/- was found. In pursuance of the said search an order under Section 158BC of the Income Tax Act was passed. Pursuant to the said order the petitioner’s father Shri John Oomen was treated as a defaulter and the Department has served on the petitioner’s father notice of demand treating him as a defaulter under the Income Tax Act. On 5th March, 2002 the 1st respondent issued a I.T.C.P.-16 on petitioner’s father attaching the petitioner’s property Oomen Villa for tax dues of the petitioner’s father. The Respondent No.1 in February, 2007 issued I.T.C.P.17 under Rule 53 of the Second Schedule of the Income Tax Rules 1961 i.e. notice for settling a sale proclamation regarding the petitioner’s property. The petitioner on being informed about the sale by his father, by letter of 7th April, 2007 filed his objections before the 1st respondent contending that the action of attaching and further proceedings for auction sale were illegal. According to the petitioner on 22nd August, 2007 the 1st respondent issued a summons under Section 131 of the Income Tax Act, 1961 to the petitioner asking him to appear and produce relevant documents for substantiating the petitioner’s claim of ownership. In pursuance of the summons the petitioner appeared and produced the relevant documents.

By an order of 21st September, 2007 which was received by the petitioner on 11th October, 2007 the petitioner was informed that his objections were rejected and the auction proceedings are being

initiated in respect of the attached property to recover the arrears of tax dues. Petitioners contention is that Section 222 of the Income Tax Act would not apply and consequently the action of the respondents is without authority of law. Hence the reliefs as prayed for.

Reply has been filed by Elsy Mathew, Tax Recovery Officer. It is contended that the property was inherited property and not self acquired property. Reliance is placed on the explanation to Section 222(1) of the Income Tax Act. Based on that it is set out that the respondents are entitled to in law to attach and sale the property.

5. The questions for our consideration are:-

1. Does the purchase in the name of the minor son amount to a transfer within the meaning of the explanation to Section 222(1)?

2. If on fact it is found that the house was constructed on the land in the year 1979-80 and stands in the name of the petitioner much before a demand was made on his father for the year 1986-96, whether the petitioner in whose name the house and the property stands was liable and the property and house could be attached and sold.

6. To answer the first question, for our consideration we may gainfully refer to the provisio